Citation Nr: 0117386
Decision Date: 06/29/01 Archive Date: 07/03/01
DOCKET NO. 96-15 079 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for an
acquired psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
Appellant and sister
ATTORNEY FOR THE BOARD
D. M. Fogarty, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1971 to
September 1975.
This matter is before the Board of Veterans' Appeals (Board)
as a result of the veteran's appeal of a September 1995
rating decision from the Department of Veterans Affairs (VA)
Regional Office (RO) in Waco, Texas.
The Board also notes that in a November 2000 rating decision,
the RO denied entitlement to service connection for a dental
disability, an eye disability, and bilateral calcaneal
fractures, claimed as crushed heels. The veteran has not
filed a notice of disagreement as to that decision. Thus,
this matter is not before the Board for appellate
consideration.
FINDINGS OF FACT
1. In a July 1992 decision, the RO denied entitlement to
service connection for an acquired psychiatric disorder. The
veteran was informed of this decision and did not file a
notice of disagreement.
2. Evidence submitted since the July 1992 rating decision is
new, bears directly and substantially upon the specific
matter under consideration, and is so significant that it
must be considered in order to fairly decide the merits of
the claim.
CONCLUSION OF LAW
Evidence submitted since the July 1992 rating decision
denying entitlement to service connection for an acquired
psychiatric disorder is new and material; the claim for this
benefit is reopened. 38 U.S.C.A. § 5108 (West 1991);
38 C.F.R. § 3.156(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim of entitlement to service connection for
an acquired psychiatric disorder was originally denied in a
July 1992 rating decision because there was no evidence of
treatment for that disorder during military service. The
veteran was informed of that decision in a letter dated in
August 1992. The veteran did not file a timely notice of
disagreement as to that determination. The July 1992 rating
decision therefore became final based upon the evidence then
of record. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R.
§§ 3.104(a), 20.302, 20.1103 (2000). However, a claim will
be reopened if new and material evidence has been submitted
since the last decision denying the claim on any basis.
38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105 (2000);
Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The veteran
filed an application to reopen her claim in January 1995.
New and material evidence means 1) evidence not previously
submitted; 2) which bears directly and substantially upon the
specific matter under consideration; 3) which is neither
cumulative nor redundant; and 4) which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a). For
the limited purpose of determining whether to reopen a claim,
the credibility of the evidence is to be presumed. Justus v.
Principi, 3 Vet. App. 510 (1992).
A substantial amount of medical evidence has been received
since the RO's July 1992 decision including service personnel
records, hearing testimony by the veteran and her sister, VA
outpatient treatment records dated from 1991 to 2000, and
private medical records. At her March 1995 RO hearing, the
veteran's sister testified that she was a nurse and that the
veteran's psychiatric problem began during military service.
VA outpatient treatment records and private treatment records
reflect continued treatment for a psychiatric disorder. The
November 1996 VA record does assign the onset of psychiatric
problems to service. The January 1997 private record also
indicates that such problems began during service. These
items may not alone be sufficient to justify a favorable
determination, but they arguably meet the minimal standard of
providing "a more complete picture of the circumstances
surrounding the origin" of her disability. Hodge v. West,
155 F.3d 1356, 1363 (Fed. Cir. 1998).
ORDER
New and material evidence having been presented to reopen a
claim of entitlement to service connection for an acquired
psychiatric disorder; the claim is reopened. To this extent
only, the appeal is granted.
REMAND
The Board notes that there has been a significant change in
the law during the pendency of this appeal. On November 9,
2000, the President signed into law the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000). This law redefines the obligations of VA with
respect to the duty to assist and includes an enhanced duty
to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. This law
also eliminates the concept of a well-grounded claim and
supersedes the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded. This change in the law is applicable to
all claims filed on or after the date of enactment of the
VCAA, or filed before the date of enactment and not yet final
as of that date. Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-
2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
Because of the change in the law brought about by the VCAA, a
remand in this case is required for compliance with the
notice and duty to assist provisions contained in the new
law. In addition, because the RO has not yet considered
whether any additional notification or development action is
required under the VCAA, it would be potentially prejudicial
to the appellant if the Board were to proceed to issue a
decision at this time. See Bernard v. Brown, 4 Vet. App. 384
(1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992)
(published at 57 Fed. Reg. 49,747 (1992)). Thus, for the
aforementioned reasons, a remand of this claim is required.
In an effort to assist the RO, the Board has reviewed the
claims file and identified certain assistance that must be
rendered to comply with the VCAA. However, it is the RO's
responsibility to ensure that all appropriate development is
undertaken in this case. A review of the record reflects
that the veteran is receiving Social Security disability
benefits; however, those records have not been associated
with the claims folder. The record further reflects that
although the veteran was afforded a VA examination in
February 1992, the examiner did not provide an opinion as to
the etiology of the veteran's psychiatric disability.
Finally, it is not clear if all of the veteran's current
treatment records have been requested and associated with the
claims folder.
Accordingly, this case is REMANDED for the following:
1. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.
2. The RO should contact the veteran and
obtain the names and addresses of all
medical care providers who have treated
the veteran for her psychiatric disorder
since 1998. After securing the necessary
permission from the veteran, copies of
any available records that are not
already of record should be obtained and
associated with the claims folder.
3. The RO should obtain from the Social
Security Administration the records
pertinent to the veteran's claim for
Social Security disability benefits as
well as the medical records relied upon
concerning that claim.
4. The RO should schedule the veteran
for a VA psychiatric examination to
determine the current nature and etiology
of her psychiatric disability. The
claims folder and a copy of this remand
must be made available to and reviewed by
the examiner prior to completion of the
examination report. All necessary tests
or studies should be performed and all
findings must be reported in detail. The
examiner is requested to identify any
psychiatric disorder present. The
examiner is further requested to express
an opinion whether any current
psychiatric disorder began in service.
The examiner should also opine whether it
is as least as likely as not that the
veteran's psychiatric disorder, if any,
was caused by or the result of any
incident of military service. All such
information and opinions, when obtained,
should be made a part of the veteran's
claims file. A complete rationale for
any opinion expressed must be provided.
5. Following completion of the above,
the RO should review the claims folder to
ensure that the requested development has
been completed. In particular, the RO
should review the requested examination
report and required opinion to ensure
that they are responsive to and in
complete compliance with the directives
of this REMAND. If not, the RO should
implement corrective action.
6. The RO should then readjudicate the
issue of entitlement to service
connection for an acquired psychiatric
disorder.
If the benefit sought on appeal remains denied, the veteran
and her representative should be furnished a supplemental
statement of the case with regard to the additional
development and given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board for
further appellate consideration. The Board intimates no
opinion as to the ultimate outcome of this case. The veteran
need take no action unless otherwise notified.
The Board notes that the veteran has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
John E. Ormond, Jr.
Member, Board of Veterans' Appeals